Provision of Appeal under Criminal Procedure Code

Introduction

The term “appeal” has not been defined in the code. According to the dictionary meaning, an appeal is a complaint or grievance to a superior court for reconsideration or review of a decision, verdict or sentence of a lower court.[1] It has been said that every human being is fallible and a judge is not an exception. It is thus possible that even a judge may err or commit mistake and his decision may be wrong or faulty. Article 25 of the Constitution Of India guarantees life and liberty to every citizen, small or big, rich or poor, as one of the Fundamental Rights. It is therefore, necessary that a person aggrieved by an order of the court of the first instance may be able to challenge it by preferring an appeal. An appeal is a method of correction of manly error or solution of human frailty.

Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must be governed by the statute which grants it.[2]

SECTION 372 provides, no appeal lies except otherwise provided by the Code or by any other law for the time being in force. Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court.

SECTION 373 – APPLIES TO APPEALS FROM

Orders requiring security for keeping peace or good behavior and

Against order refusing to accept or rejecting to accept or rejecting a surety under s. 121.

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4) of S. 122, the proceedings are already laid before the Session Judge.

SECTION 374: APPEALS FROM CONVICTIONS

Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial]; may appeal to the High Court

Save as otherwise provided in sub-section (2), any person,

convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class,

sentenced under section 325, or

in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

While disposing of appeals from the sentences of the Sessions Court under this Section, the High Court should specify the reasons for rejection of appeal and should not reject it summarily. This will enable the Supreme Court to know the view of the High Court, in case the appellant moves the Supreme Court in appeal. For computing the sentence of imprisonment for seven years for the purpose of ascertaining the appellate forum under Section 374 (2), the sentence in default of payment of a fine is not to be added to the substantive sentence of imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.

NO RIGHT OF APPEAL

Section 375 and 376 bar appeals in certain cases, though a provision of Revision is maintainable. Thus no appeal shall lie-

Where a High Court passes a sentence of imprisonment not exceeding six months or fine not exceeding one thousand rupees or both;

Where a Court of Session or a Metropolitan Magistrate passes a sentence of imprisonment not exceeding three months or fine not exceeding two hundred rupees or both;

Where a Magistrate of the First Class passes a sentence of fine not exceeding one hundred rupees; or

Where in a summary case, a Magistrate passes a sentence of fine not exceeding two hundred rupees.

APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the inadequacy of sentence awarded by any court other than a High court. If the sentence appears to be manifestly inadequate resulting in failure of justice, the appellate court can interfere with it and can enhance the sentence. But at the same time, the high court can also exercise its revisional jurisdiction, suo motto call for the record and enhance the sentence in appropriate cases after giving an opportunity to the accused.[4] The appellate court must pass a speaking order for enhancing the sentence. A bold statement that the ends of justice demanded enhancement of sentence was held insufficient by courts.

An appeal under Section 377 must be filed by the State within a period of 60 days and the contention of the State that it was under a mistaken belief that period of limitation is ninety days would be no excuse for condonation of the delay.

APPEAL IN CASE OF ACQUITTAL

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court.

An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.

Appeal against an order of acquittal is an extraordinary remedy. In exercising this power the High Court should give proper weight and consideration to “Very substantial and compelling reasons.

“Very substantial and compelling reasons” exist when:

The trial court’s conclusion with regard to the facts is palpably wrong;

The trial court’s decision was based on an incorrect view of law;

The trial court’s judgment is likely to result in “grave miscarriage of justice”;

The entire approach of the trial court in dealing with the evidence was patently illegal;

The trial court’s judgment was manifestly unjust and unreasonable;

The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

This list is intended to be illustrative, not exhaustive.

The Appellate Court must always give proper weight and consideration to the findings of the trial court. If two reasonable views can be reached – one that leads to acquittal, the other to conviction – the High Court’s/appellate courts must rule in favour of the accused.

POWERS OF APPELLATE COURT IN APPEAL AGAINST ACQUITTAL

An appellate court has full power to review, re-appreciate and reconsiders the evidence upon which the order of acquittal is founded.

The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseology are more in the nature of “flourishes of language” to emphasize reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

SECTION 379 – APPEAL AGAINST CONVICTION BY HIGH COURT IN CERTAIN CASES

Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court.

An appeal to would lie to the Supreme Court as a matter of right when High Court, on appeal,

Reversed an order of Acquittal of an accused person and

Convicted and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more.[8]

In other cases appeal can be filed, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Only grave injustice manifest on record can induce the Supreme Court to interfere with the concurrent finding of guilt of Courts below. The Court would be slow in reversing the finding entered by the High Court unless there is a perverse and erroneous appreciation of evidence. If the High Court, for acquitting the accused has given certain tenable reasons, the Supreme Court would not be justified in interfering with such acquittal.[9] The word “acquittal” doesn’t mean that the trial must have ended in a complete acquittal but would also include the case where an accused has been acquitted of the charge of murder and has been convicted of a lesser offense.[10]

SECTION 380- SPECIAL RIGHT OF APPEAL IN CERTAIN CASES

Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of such person, all or any of the persons convicted at such trial shall have a right of appeal.

Form of Appeal -SECTION 382 – Petition of appeal.

Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against. A copy of the judgment or order means a certified copy. The court has, however, discretion to dispense with the copy of the judgment.[11]

SECTION 383 – APPEAL FROM JAIL

Where a convict is in jail and intends to challenge his conviction, he can file an appeal from jail by presenting it to the officer in charge of the jail. It is the duty of the jail officer to forward such appeal to an appropriate court. No Jail Appeal can be dismissed without affording the reasonable opportunity to the appellate court of being heard.

SECTION 384 – Summary Dismissal of Appeal or Dismissal in Limine

If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.

DISMISSAL IN LIMINE (U/S 384)

The Appellate court’s power to dismiss an appeal must be exercised sparingly and with great circumspection. The Apex court has dealt with cases where the summary dismissal of criminal appeal is permissible. Even if the records of the case is destroyed or is not available, it would justify acquittal. Bolin v. Jagdish (2005) AIR 2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6

SECTION 385 – Procedure for hearing of the appeal which has been admitted and not dismissed summarily under Section 384

The section lays down the procedure for hearing of the appeal which has been admitted and not dismissed summarily under Section 384.

An order of the High Court setting aside the acquittal of the accused in appeal without notice having been sent to the accused was held to be illegal. The accused must be heard and his appearance must be ensured while disposing of the appeal.

Where the appeal is not dismissed summarily under Section 384, the Appellate Court is bound to call for the record if such record has not already been sent by the Court and then give a hearing to the parties However, the Court may dispose of the appeal even without asking for the record where the appeal is only as to the legality of the sentence.

POWERS OF APPELLATE COURT

SECTION 386 Of the Code specifies powers of the appellate court. It provides that after persuing the record and after hearing the parties, the court may dismiss the appeal, allow the appeal or pass any other order that may appear to it be just and proper.

It includes appeal –

Against Acquittal

Against conviction

For enhancement of sentence

From other orders

Clause (d) of section 386 applies to all orders other than that of conviction, or of acquittal, or for enhancement of sentence. The power which the appellate court possess is of alteration or reversal of the order of the lower court.[12] According to Section 386(e) of the Code, the appellate Court may make any amendment or any consequential or incidental order that may be just or proper.

CONCLUSION

An appeal is a creature of statute and the power and jurisdiction of the appellate court must be circumscribed by the words of the statute. At the same time, a court of appeal is a ‘court of error’ and its normal function is to correct the decision appealed from if necessary, and its jurisdiction should be co-extensive with that of the trial court. It cannot and ought not to do something which the trial court was not competent to do.

Contributed by – Hiteshi Kakkar, School of Law FIMT Delhi and Akshay Bhasin, UILMS Gurgaon